29737/96

 AS TO THE ADMISSIBILITY OF Application No. 29737/96 by B. Y. U. against Switzerland The European Commission of Human Rights sitting in private on 7 April 1997, the following members being present: Mrs. G.H. THUNE, Acting President Mr. S. TRECHSEL Mrs. J. LIDDY MM. E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS E.A. ALKEMA M. VILA AMIGÓ Mrs. M. HION MM. R. NICOLINI A. ARABADJIEV Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 23 December 1995 by B. Y. U. against Switzerland and registered on 8 January 1996 under file No. 29737/96; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 19 July 1996 and the observations in reply submitted by the applicant on 14 October 1996; Having deliberated; Decides as follows: THE FACTS The applicant, a Turkish citizen born in 1974, is a service specialist (Servicefachfrau) residing in Zürich. Before the Commission she is represented by David Husmann, a lawyer practising at Affoltern a.A. in Switzerland. The facts of the case, as submitted by the parties, may be summarised as follows. A. Particular circumstances of the case The applicant got to know her future husband, U.U., born in 1963, in Tarsus in Turkey in 1991. On 7 December 1991 the applicant moved with her mother and her brother to Switzerland where her father was residing. On 30 June 1992 U.U. joined her in Switzerland. On 7 November 1992 the applicant married U.U. The couple first lived in the apartment of the applicant's parents. Subsequently, they rented their own apartment, though the spouses never lived there together. At the outset, the applicant lived alone in the apartment while the husband was in Turkey. Upon his return to Switzerland, the applicant went back to her parents, whereupon at some stage U.U. lived in the apartment. On 4 November 1993 the applicant brought a divorce action against U.U. before the Zürich District Court (Bezirksgericht), claiming marital alienation (Zerrüttung) within the meaning of S. 142 of the Swiss Civil Code (Zivilgesetzbuch; see below, Relevant domestic law). In her action the applicant claimed that originally, while still in Turkey, she had been together with U.U. in a group; she had found him nice though she had had no further contact with him. After her departure to Switzerland, he had phoned her with the intention of reviving their relationship. Even though they had not been together, he had expressed his wish to marry her. She had not known the reason herefor, and her parents had at first been against the idea. Subsequently, U.U. had been able to convince her father who suddenly agreed to the marriage. When in 1992 U.U. came to Switzerland, the pressure on her to marry him increased, as U.U. claimed that he would be ridiculed if he returned to Turkey. Moreover, by now the father insisted that she marry him, even though she had not wanted to do so. The applicant further maintained that the period of time spent together with U.U. had not been satisfactory. They had lacked common interests, and had not had much to say to one another. They had not had any sexual relations. When, after their marriage, they lived together with her parents, there had frequently been tensions. The applicant also claimed that U.U. had married her in order to obtain a residence permit in Switzerland. He had threatened her with various disadvantages, if she introduced a divorce action. In its decision of 3 February 1994 the District Court dismissed the action. The Court found that if the applicant's parents had indeed forced the applicant to enter marriage, this would suffice as an objective ground of alienation. However, the Court considered that the applicant herself was mainly responsible for the fact that the couple had never been able to live their marital life and, therefore, that the marriage was alienated. In particular, the Court considered that the applicant had originally wanted to marry U.U., and had tried to convince her parents; she had never told her parents anything to the contrary. In view of her statements, it furthermore did not appear credible that she had not been able to resist her parents' pressure; indeed, she had never even stated that she had tried to do so. The applicant had not mentioned any faults (Verfehlungen) on the part of her husband which could have brought about a change of opinion. The applicant's appeal (Berufung) against this decision was dismissed on 16 January 1995 by the Court of Appeal (Obergericht) of the Canton of Zürich. In its decision the Court found that any action for the annulment of the marriage (Anfechtungsklage; see below, Relevant domestic law) would be belated as the marriage had been concluded on 7 November 1992, and such an action would have had to be introduced within six months. The decision continued:

"3.

a) A fictitious marriage, i.e. a marriage which, according to the will of both partners has not been concluded with the aim of founding a marital community, is only null and void if it has been concluded in order to obtain nationality. For the rest, such marriage is neither null and void, nor can it be contested. If the plaintiff is to be understood as claiming that her agreement to the marriage falls to be considered under S. 126 of the Civil Code (CC), as she had been threatened with a close and sufficient danger to her honour or that of her father, the contestation would be out of time. The plaintiff admits that since her marriage she can do as she wishes, as she is now of age ... The influence of any threat would thus have ceased with the marriage. The celebration took place on 7 November 1992, and the time-limit of six months for annulment according to S. 127 CC had therefore expired when the action was filed in November 1993. b) The divorce of a fictitious marriage is only possible on the basis of SS. 137-139 CC and S. 141 CC. For, if a spouse did not intend to found a marital community, the issue of marital alienation within the meaning of S. 142 CC as well as of desertion within the meaning of S. 140 CC cannot arise ... The plaintiff cannot therefore rely on the fact that neither she nor the defendant had ever had the intention of living together; or that the apartment ... was only rented by the couple in order no longer to be together with the parents ... In this context it is also irrelevant that, as she knew, the defendant may have married her only in order to be able to stay in Switzerland ... Moreover, her statements in this respect are contradicted by her assertion that the defendant had travelled to Turkey in June/July 1993 in order to look for work and had only returned as he had not found any. c) If the plaintiff allegedly married under her father's pressure, this would not be a ground for divorce, because only facts occurring after the conclusion of marriage may justify divorce ... Facts occurring before or during the conclusion of marriage may only be considered as a ground for divorce if they subsequently have a negative influence on the marital life. This is not the case in the present situation since the plaintiff, according to her own submissions, never has had the intention to lead a married life with the defendant. For the rest, the plaintiff's statements in this respect are not at all credible. It is difficult to understand why she could not have resisted the pressure of her father, if she is now in a position to raise and resolutely to pursue a divorce action." The applicant filed an appeal (Berufung) with the Federal Court (Bundesgericht). In her appeal statement she summarised the facts and pointed out contradictions in the decision of the Court of Appeal. She argued that the previous decision breached Federal law, in particular S. 142 of the Civil Code, in that the Court of Appeal had considered that there could never be marital alienation in the case of a fictitious marriage since the partners had never had the intention to live together. The appeal statement continued (p. 8):

"If the lack of intention to found a marriage was not considered a ground of marital alienation, the disturbing result would remain that such a marriage could hardly ever be divorced. That would also breach the right to personality of the partner who is willing to divorce, in particular as the latter would be in a forced community which could not be dissolved. This cannot be right." The Federal Court dismissed the appeal on 16 June 1995. In its decision, served on 23 June 1995, the Court concluded that "the general ground of divorce under S. 142 of the Civil Code cannot be invoked for the dissolution of a fictitious marriage". B. Relevant domestic law a. Position of the Convention in Switzerland According to Swiss legal practice, the Convention is directly applicable in Switzerland and can be invoked before every public authority. b. Swiss Civil Code According to S. 126 of the Swiss Civil Code (Zivilgesetzbuch), a marriage may be annulled, inter alia, if a spouse has agreed to marriage as a result of a dangerous threat to his or her life, health or honour. The action for annulment of the marriage must be filed within six months after the ground has been discovered or the threat has ceased to exist, and at the latest five years after conclusion of the marriage (S. 127). SS. 137-142 of the Civil Code list the grounds for divorce. These are: persecution of life, abuse and slander (Nachstellung nach dem Leben, Misshandlung und Ehrenkränkung) according to S. 138; crime or dishonourable conduct (Verbrechen und unehrenhafter Lebenswandel) according to S. 139; desertion (Verlassung) according to S. 140; and mental illness (Geisteskrankheit) according to S. 141. According to S. 142 para. 1 of the Civil Code, a marriage must be divorced if the marital relationship is so alienated (zerrüttet) that the spouses can no longer be expected to continue the marital community (dass den Ehegatten die Fortsetzung der ehelichen Gemeinschaft nicht mehr zugemutet werden kann). According to para. 2 of S. 142, the spouse mainly responsible herefor is not entitled to introduce an action. c. Remedies to the Federal Court The Federal Judiciary Act (Organisationsgesetz) envisages in such cases two remedies to the Federal Court. SS. 84ff of the Federal Judiciary Act provides for a public law appeal (staatsrechtliche Beschwerde) which serves to complain, in respect of cantonal decisions, of a breach of constitutional law. According to the Federal Court's case-law, this remedy also serves to complain of a breach of the Convention. SS. 43ff of the Federal Judiciary Act also provides in civil cases for an appeal (Berufung) to complain of breaches of Federal law, in particular the Civil Code. According to S. 43 para. 1, if a breach of constitutional rights is claimed, these must be raised by means of a public law appeal. However, according to the Federal Court's case- law, it is possible to complain indirectly in an appeal of a breach of the Convention by maintaining that the interpretation of the applicable Federal law ran counter to the Convention. COMPLAINTS The applicant complains under Articles 8 and 12 of the Convention of a breach of her right to respect for her private and family life in that she is obliged to remain married, even though she does not want to be so. Thus, divorce has been excluded for her on the grounds that her marriage is alienated, or that her husband has deserted her. The applicant complains that she is deprived of her right to remarry. She is thus expected to remain married all her life with a man whom she never wanted to marry in the true sense, and who himself apparently is no longer interested in her, as his currently unknown place of residence demonstrates. The applicant also submits that she missed the time-limit for filing an action for the annulment of the marriage, as she was not informed of such a possibility. The applicant submits that she only married her husband upon her father's orders so that the husband could obtain a residence permit in Switzerland. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 23 December 1995 and registered on 8 January 1996. On 13 May 1996 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 19 July 1996. The applicant replied on 14 October 1996. THE LAW The applicant complains under Articles 8 and 12 (Art. 8, 12) of the Convention of a breach of her right to respect for her private and family life in that she is obliged to remain married, even though she does not want to be so. Thus, divorce has been excluded for her on the grounds that her marriage is alienated, or that her husband has deserted her. The Government submit that the applicant has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. Thus, in addition to filing an appeal, she should also have filed a public law appeal, which remedy serves to complain of a breach of the Federal Constitution or of the Convention. In any event, she failed to raise in her appeal before the Federal Court the complaint which she is now raising before the Commission. Thus, in her statement she merely dealt with the interpretation of S. 142 of the Civil Code, rather than referring to constitutional law or the Convention. The applicant submits that in Switzerland it is unnecessary simultaneously to file an appeal and a public law appeal. Moreover, in her appeal she duly raised the complaint she is now making before the Commission, in particular by referring to a breach of her personality right and of the liberty to free herself from forced community. As a result, the Federal Court should have examined the constitutionality of the contested practice. In the applicant's view, it would be formalistic to expect that reference should have been made to a Convention provision. Under Article 26 (Art. 26) of the Convention the Commission may only deal with "the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law". Before the Commission the applicant is complaining that she is under an obligation to remain married which, in her view, breaches Articles 8 and 12 (Art. 8, 12) of the Convention. The Commission need not decide whether in the proceedings before the Federal Court the applicant should also have raised her complaints in a public law appeal. Thus, in her appeal before the Federal Court, the applicant merely referred to a breach of Federal law, in particular of S. 142 of the Civil Code, in that the Court of Appeal had considered that there could never be marital alienation in the case of a fictitious marriage since the partners had never had the intention to live together. However, the applicant never submitted that this practice ran counter to Articles 8 and 12 (Art. 8, 12) of the Convention or even to the Swiss Constitution. As a result, the applicant failed sufficiently to raise before the Federal Court the complaint she is now making before the Commission. It follows that she has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies, and her application must be declared inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. H.C. KRÜGER G.H. THUNE Secretary Acting President to the Commission of the Commission